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07.Apr.2011

A recent case looked at the circumstances under which cases will be transferred to the Court of Protection. Alex Ruck Keene and Victoria Butler-Cole report.

The case of B Local Authority v RM, MM and AM [2010] EWHC 3802 (Fam), decided by Hedley J in October last year but only reported on Lawtel in March, provides useful guidance as to the circumstances under which the Court will transfer an application for a care order in respect of a 16 or 17 year old to the Court of Protection. Such applications are, as Hedley J noted, likely to be rare, but raise some difficult questions.

The expert evidence was that the child in question, AM (who was nearly 17 at the time that the matter came before Hedley J), suffered from severe learning disability, autism and Tourette Syndrome. Her disability was lifelong, she would never be able to live independently and would require a high level of support from the adults around her in order to ensure that her day-to-day needs were met. The local authority sought a care order on the basis that AM’s mother had never really appreciated or accepted the difficulties caused by these profound disabilities and, despite all the evidence, the mother adhered to the belief that this child could be cared for at home.

The s.31(2) Children Act 1989 threshold was conceded; the question for the Court was therefore what order (if any) should be made. The mother contended for no order on the basis that she was prepared to cooperate with the local authority; the local authority contended for a care order (supported in this by the Guardian).

Hedley J confessed his doubts as to both approaches, and then (at paragraph 24) identified as a source of further concern the fact that the issues in the case – which boiled down the quality of care AM was receiving at a specific unit, and the speed at which a move to another was planned or carried into effect – would not be resolved by the time AM turned 18.

As he noted: “[h]er disabilities are both grave and permanent, the demands made by her needs will be no less as she becomes an adult. Indeed, she may present even greater challenges to carers. The period of 12 months [to her 18th birthday] is wholly arbitrary in her life and in dealing with the needs that she has.” Hedley J therefore ventured the view that the case should be transferred to the Court of Protection, a question which he noted that the Counsel before him did not understand had been considered before by the Court.

Hedley J set out the statutory framework, and, in particular, Article 3 of the Mental Capacity Act 2005 Transfer of Proceedings Order, SI2007/1899, which provides in material part (Article 3(3)) that a Court deciding whether to transfer proceedings to the Court of Protection from those under the Children Act 1989 must have regard to:

(a) whether the proceedings should be heard together with other proceedings that are pending in the Court of Protection;

(b) whether any order that may be made by the Court of Protection is likely to be a more appropriate way of dealing with the proceedings;

(c) the extent to which any order made as respects a person who lacks capacity is likely to continue to have effect when that person reaches 18; and (d) any other matters that the Court considers relevant.

Hedley J noted at paragraph 28 that: “That raises the question particularly under Article 3(3)(d) as to what matters the Court should take into account in deciding whether to exercise these powers and to adopt this approach. An ex tempore judgment in a case on its own facts is no basis for attempting an exhaustive analysis of these issues; nevertheless, a number of matters suggest themselves, matters which may often be relevant in the relatively small number of cases in which this issue is likely to arise.

“One, is the child over 16? Otherwise of course, there is no power. Two, does the child manifestly lack capacity in respect of the principal decisions which are to be made in the Children Act proceedings? Three, are the disabilities which give rise to lack of capacity lifelong or at least long-term? Four, can the decisions which arise in respect of the child's welfare all be taken and all issues resolved during the child's minority?

“Five, does the Court of Protection have powers or procedures more appropriate to the resolution of outstanding issues than are available under the Children Act? Six, can the child's welfare needs be fully met by the exercise of Court of Protection powers? These provisional thoughts are intended to put some flesh on to the provisions of Article 3(3); no doubt, other issues will arise in other cases. The essential thrust, however, is whether looking at the individual needs of the specific young person, it can be said that their welfare will be better safeguarded within the Court of Protection than it would be under the Children Act.”

On the particular facts of the case before him, Hedley J concluded that he was “wholly satisfied” (paragraph 29) that AM’s welfare would be better protected within the Court of Protection; he therefore transferred the case under Article 3(4)(a) to the Court Protection, reconstituted himself as a judge of the Court of Protection, and dedicated the remainder of his judgment to giving effect to his conclusions within the framework of the Mental Capacity Act 2005.

Comment

The parallel jurisdiction of the Court under the Children Act 1989 and the MCA 2005 in respect of children aged between 16 and 17 has proved in the authors’ experience to be the source of some difficulties in practice, and this guidance is welcome in terms of setting out the framework both for transfer and also for when proceedings should be issued within the Court of Protection, rather than for orders under the Children Act 1989.

The judgment does throw into relief one interesting question of principle, however, namely the difference in approach between the CA 1989 and the MCA 2005. The CA 1989 enshrines a protective jurisdiction; the MCA 2005 enshrines both this jurisdiction, but also the enabling jurisdiction of the Court to promote the autonomy of P.

Where a 16 or 17 year old suffers from life-long disabilities rendering them effectively permanently incapable of making welfare decisions, which approach should prevail? Should it make a difference that proceedings have been brought under the CA 1989 or the MCA 2005? Should it, in turn, make a difference as to whether the Court should transfer proceedings from one to the other? Hedley’s judgment might suggest that it should – but, as he noted, it is likely that these issues will have to be fleshed out further in future judgments.

Alex Ruck Keene and Victoria Butler-Cole are barristers at 39 Essex Street (www.39essex.co.uk).

Details

30.Mar.2011

Many detained mental health patients who have been certified as consenting to treatment appear to be refusing to give consent or lack the capacity to do so, the Care Quality Commission has warned in its second annual report.

The Commission said the issue was a particular area of concern and that many services needed to substantially improve their practices. It suggested that some mental health services applied security measures in ways that placed unnecessary restriction on autonomy or compromised privacy.

The State of Care report revealed that the Commission had observed “over-occupied inpatient wards, lack of one-to-one work with patients, or unnecessary restrictions of liberty”. It also said people from minority ethnic groups continued to be over-represented among those detained under the Mental Health Act.

The watchdog’s community mental health survey added that there was significant variation in the extent to which mental health services involved patients in planning their care and reviewing their treatment.

Other key findings from the report, which looked at the state of health care and adult social care in England, included:

• Health and social care services improved in the years leading up to the implementation of the Health and Social Care Act 2008. However, “there are still some areas which have not improved fast enough”.
• There has been a steady increase in the number of councils which are performing “well” or “excellently”. Similarly the proportion of NHS trusts scoring “excellent” or “good” for the quality of their services has risen from 41% in 2005/06 to 63% in 2008/09. Waiting times for NHS hospital treatment have shown progress.
• People now have greater control over their care as a result of more choice in areas such as appointment times, choice of location of care and choice of providers. However, the report said there was still wide variation in progress in giving people access to personalised services through direct payments or personal budgets
• The quality of private-sector run care services “is generally lower” than those run by councils or voluntary organisations. However, council and voluntary organisation run services represent a fraction of the market
• There has been a substantial increase in the number of care homes and home care services meeting safe care standards. But further improvements in medicine management are still needed
• The quality of care arranged by councils between September 2008 and September 2009 improved. Councils also made significant improvements in adult safeguarding and in maintaining the dignity and respect of vulnerable people
• Some organisations “still lag behind the pack”. Key areas of concern include: safe care; choice and control (particularly in mental health); person-centred services; and standards of care and support
• Councils find it challenging to extend further options for independent living, and community-based services have been reduced. “The rapid growth of demand for support, especially due to the rising number of older people, has not been matched by growth in the availability for more person centered support,” the CQC said, adding that the number of people over 75 who had repeated emergency admissions increased, “suggesting a lack of effective community support”
• Only 31% of councils were monitoring how well they were meeting targets on equalities
• 91% of NHS organisations are meeting the minimum standard for challenging discrimination, promoting quality and respecting human rights. “But all organisations should have met this standard in 2004, and performance is low in comparison to most other minimum standards”.

CQC's chairwoman, Dame Jo Williams, said: “There have been significant improvements in outcomes for people who use services and these services should be congratulated for the work they have done. However, the overall picture is far from perfect and it will be vital for all parts of the health and social care system to continue this upward trend and consolidate the best of what has worked well for people who use services.”

“The next few years will be a crucial time for health and social care in England. There will be important changes such as the creation of HealthWatch, Monitor as the economic regulator for health and social care, GP led commissioning consortia, Health and Well Being Boards and the National Health Service Commissioning Board.”

Dame Jo added that the new system of regulation under the 2008 Act worked much more in real time, allowing the CQC to respond more quickly to poor standards of quality and safety where they are identified.

The CQC is to publish another report later in 2011 examining the care system after registration under the 2008 Act.

Details

17.Mar.2011

Independent mental health advocacy (IMHA) services for people detained under the Mental Health Act are “over-stretched and unable to help all of the people who need their support”, the Mental Health Alliance has claimed.

The entitlement to IMHA was introduced by the Mental Health Act 2007, with the aim of helping patients understand and exercise their legal rights.

But the Alliance report suggested there was wide variability in the commissioning of advocacy services.

Key findings include:

• IMHA providers report being underfunded and over-stretched in the face of demand for their services
• There is still a lack of awareness about IMHA among service users and mental health staff
• A rushed commissioning process has meant that many IMHA services were not put out to tender. “This has led to a failure to provide adequately for black and minority ethnic service users who are disproportionately affected by the Mental Health Act”
• There is evidence of good commissioning and providers striving to deliver quality services.

The report called on commissioners to carry out IMHA needs assessments and put new contracts out to tender “so that comprehensive services are provided for and BME service users’ needs are properly catered for”.

The Alliance urged mental health service providers to ensure that service users are made fully aware of their rights to an IMHA.

It also called on the Care Quality Commission to monitor the implementation of IMHA and take action if patients are not being offered the right support.

Alison Cobb, chair of the Alliance, said: “Independent mental health advocacy is a vital safeguard for the rights of people who are detained under the Mental Health Act, including those who are subject to the new powers of supervised community treatment when they leave hospital.

“The Health and Social Care Bill shifts responsibility for commissioning of IMHA services from the NHS to local authorities. It is vital that local authority commissioners are given clear guidance to help them to commission advocacy services to meet all of their local needs.”

Philip Hoult

Details

15.Mar.2011

The Care Quality Commission has warned that it has come across “too many examples” of people using health and adult care services who were being cared for in ways that potentially amounted to an unlawful deprivation of their liberty, and therefore potentially a breach of their human rights.

“In most cases, this was because services imposed significant restrictions on liberty without any consideration of the Deprivation of Liberty Safeguards,” the regulator said.

In a report entitled The operation of the Deprivation of Liberty Safeguards in England 2009/10, the CQC also found a clear variation in organisations’ understanding and practice of the DOLS and in staff training. “We came across too many examples of managers and staff in hospitals and care homes who are unaware of the Safeguards or who have had received no training on them, even towards 2009/10.”

The Commission, which is under a duty to monitor application of the DOLS, said it had similarly seen “too many examples” where staff had failed to consider whether certain practices could deprive a person of their liberty.

The CQC acknowledged calls from managing authorities, supervisory bodies and key stakeholders for clearer guidance as to what constitutes a “deprivation of liberty”. The regulator said there needed to be more understanding around the circumstances that may amount to a deprivation of liberty and of the types of cases that should have gone to the Court of Protection.

“We acknowledge the difficulty in understanding exactly which circumstances amount to a deprivation of liberty and in keeping pace with legal judgments from the Court of Protection that continually refine and add to the body of knowledge around what constitutes a deprivation of liberty,” it added.

However, the watchdog insisted that lack of a definition should not be used as an excuse, adding: “While it may be helpful to have a clear definition of a deprivation of liberty, health and social care staff should be trained effectively to be aware of the types of practice that could mean people using their services are deprived of their liberty. If there is any uncertainty, they can seek advice from their supervisory body.”

The Commission revealed that managing authorities, supervisory bodies and key stakeholders had criticised the DOLS as being over-bureaucratic and for the amount of paperwork that was needed to make assessments and comply with legal requirements.

The regulator said that although it did not have substantive evidence on this issue, it may have influenced the lower than expected rate of applications to deprive a person of their liberty (7,160 were made in England compared to the 21,000 predicted for England and Wales). “If the processes to do so are expensive and time-consuming, it is possible that managing authorities and supervisory bodies are either changing their practice to ensure that they do not deprive people of their liberty, or worryingly, they may not be adhering to the Deprivation of Liberty Safeguards.”

The CQC said it had also found a lack of understanding of the wider Mental Capacity Act. The regulator said some misunderstanding and lack of awareness of the DOLS might be expected as they were relatively new and only recently implemented, but described this lack of understanding of the basic principles of the more established MCA as “unacceptable”.

The CQC suggested that some aspects of the DOLS regime, which came into force on 1 April 2009, had been working well. These were that some hospitals and care homes have been demonstrating good practice in using the Safeguards to protect people’s rights, and had made some good progress in ensuring that their staff were aware of their duty under the Safeguards.

Many PCTs and councils had also made good progress in the first year in implementing the mechanisms set out in the Safeguards, according to the Commission. In addition, they had worked effectively together, and established joint teams to fulfil their supervisory body role.

The report identified a wide variation in the rates of applications per 100,000 of population. The highest number were made in the East Midlands (35 per 100,000) and lowest in the South West (12.5 per 100,000). More than half the applications were not authorised.

The CQC made seven recommendations in its report. These were that:

• The Department of Health should consider developing “clear and concise” briefings that are regularly updated and circulated to all bodies involved in the Safeguards. “These briefings must be explicit about the implications of the case law for practice and be written in a way that is accessible and more easily applied to practice than previous briefings”
• All organisations with a role to play in the Safeguards should ensure that relevant staff are effectively trained in the Safeguards and that they understand the requirements placed upon them by the Safeguards
• All organisations with a role to play in the Safeguards should ensure that all staff fully understand the requirements of the wider Mental Capacity Act “to ensure that people using services have their rights protected and supported”
• Supervisory bodies should give careful consideration to how they are fulfilling their role as a supervisory body in key areas such as their capacity to conduct assessments and to ensure consistency in the outcomes of applications to deprive a person of their liberty
• Supervisory bodies should ensure that those managing authorities from which they commission care are fully aware of their responsibilities under the Safeguards and consider whether they have been proactive enough in promoting and supporting understanding within managing authorities of the Safeguards
• Managing authorities should ensure that all staff are fully aware that they should be using the least restrictive methods to care for people using services. “People should only be deprived of their liberty if it is in their best interests and if it is essential to ensure that they do not come to harm”
• Managers working in mental health units should ensure that all staff in these units are aware that imposing restrictions of movement on all patients may be a deprivation of liberty for informal patients. “This will ensure that the way they care for informal patients does not amount to a deprivation of liberty without legal authority.”

The regulator pointed out that its first year of monitoring was done under separate regulatory regimes, and suggested that with the new framework under the Health and Social Care Act 2008 now in place, it was in a position to develop a more consistent approach across health and adult social care.

Philip Hoult

Details

11.Mar.2011

Broxtowe Borough Council has fired a warning shot at Nottinghamshire County Council over proposals to cut its Supporting People budget, promising legal action if the plans are not changed.

The Cabinet at Broxtowe this week approved a letter to be sent to the county council arguing that the cuts would have a major impact on its vulnerable tenants and put an increasing burden on the borough council.

“[We] will be left to pick up the aftermath in terms of cost upon our services and devastation upon the vulnerable in our community,” the letter said, claiming that Nottinghamshire had made deeper cuts to its Supporting People budget than any other council in England.

Points made in the Broxtowe letter about specific projects and services include:

• The proposed closure of the Stepping Stones project at Eastwood, which houses 11 vulnerable residents, must be reconsidered. “With a projected withdrawal of funding in July 2011, the Stepping Stones project and the residents are being abandoned by the County Council with insufficient regard to a full impact assessment being carried out.” Broxtowe suggested that at the very least a review should be carried out
• The effect of cutting the budgets for older persons reduces the capacity in the county area from 11,458 residents to 1,158. “The County Council currently fund 40% of our vulnerable tenants and the savage cuts will have a massive impact”
• Older people suffering from mental health issues and dementia could fall short of meeting the eligibility criteria identified in Nottinghamshire’s consultation. “Where this is to be the case, it would be deeply worrying and again leaving the vulnerable abandoned”
• The proposed withdrawal of the Midlands Women’s Aid – Outreach and Refuge service would “dramatically affect this council and will destine this client group to further vulnerability and isolation”. Broxtowe added that withdrawal of the service would also dramatically increase the pressure on its homeless service
• The loss of Broxtowe Women’s Project Floating Support has safeguarding implications for vulnerable adults and children and “is a great concern for this council”. The decision should be reversed, Broxtowe argued
• Removal of the South Notts Sanctuary Scheme would result in poor outcomes for the service user, less options for Broxtowe to provide support and “a very significant increase in spend on B&B and temporary accommodation”. The letter added: “The council urges the decision to withdraw these dedicated services, providing women with the specialist support they need, be reviewed and significantly changed.”

The borough council said its monitoring officer had seen the equality impact assessment and “in his view, both in respect of disability amongst the supporting people target groups and in respect of gender in respect of women’s floating support, the assessment falls very short of the County Council’s duty arising under Section 49A of the Disability Discrimination Act 1995.”

Broxtowe added: “It is therefore felt that any decisions made using the current assessment for guidance would be unsustainable by reason of illegality and irrationality and therefore would lay themselves open to challenge, which this council must consider doing.”

Philip Hoult

Details

03.Mar.2011

What are the duties of local authorities towards adults with learning disabilities? Olivia Chaffin-Laird looks at the government’s most recent guidelines, which came into effect last April.

The system concerning the eligibility for social care has been subject to scrutiny. The previous guidance, Fair Access to Care Services (FACS), was issued in 2003 and had become out of date and unworkable, raising more questions and issues than it resolved.

Many local authorities had raised their eligibility criteria to such an extent that many who were in need of resources were deemed ineligible. The system was complicated and did not safeguard those in need for any length of time.

That has now been replaced. New guidelines have now been issued by the Department of Health relating to the eligibility for social care and provides guidance on eligibility criteria for adult social care. It came into effect in April 2010.

It seeks to support fairness, transparency and consistency in the application and receipt of care nationwide. It seeks to avoid a postcode lottery and simplify the system. It hopes to reiterate good practice and the obligations upon local authorities to conduct assessments of need both appropriately and thoroughly. It urges local authorities to seek to implement a preventative measure rather than attempt to cure a more complicated issue further down the line.

The new guidelines reassert to local authorities their responsibilities, duties and obligations under statutes, statutory instruments and guidelines. It goes on to describe the duties owed towards “adults in need”, and the manner in which local authorities should assess the level of need and provide services to meet it.

It seeks to reflect the increased focus on “personalisation”, i.e. giving an individual greater choice about how they receive support and personal control over resources. It hopes to prevent vulnerable people needing social care for as long as possible.

The Council’s Responsibilities

Setting the eligibility criteria

In general councils may provide community care services to individual adults with needs arising from physical, sensory, learning or cognitive disabilities or from mental health needs:

• National Assistance Act 1948
• Health Services and Public Health Act 1968
• Chronically Sick and Disabled Persons Act 1970
• National Health Service Act 2006
• Mental Health Act 1983

They also have the power to provide services to carers under the Carers and Disabled Children Act 2002.

The guidance sets out an eligibility framework, designed for councils to use to set their own eligibility criteria.

In setting it, they must of course bear in mind their resources, local expectations, local costs, agreements with the NHS and other agencies combined with local and national factors.

Consultation should be made with service users, carers, and appropriate local agencies and organisations about their eligibility criteria and how information is presented and made available. Having said that, the final decision rests with the council.

The criteria when drawn up should be made readily available and accessible to service users, carers, and the public generally.

Entitlement to assessment

Under section 47 NHS and Community Care Act 1990 local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services.

They do have the power to assess and assist those not within their area and their duty to assess is therefore not restricted to someone ordinarily resident within their area.

The local authority is required to assess people who are about to be discharged from hospital and may need community care services.

A person who may be in need of services refers to a person who may be in need at the time or who may be about to be in need. i.e. a patient waiting for hostel accommodation.

Awareness of hidden or fluctuating conditions

Such groups include:

• those with specific communication needs
• blind or partially sighted people
• people with autism where their support needs may not be as immediately apparent or easily understood as other groups.

People with autism have previously been refused assessment because their IQ is too high. This is not acceptable.

Many deaf/blind people are not known to local authorities and they ought to be alive to this issue.

Before the community assessment

Councils must not exempt anyone who approaches or is referred to them for help from the process to determine eligibility for social care, regardless of their age, circumstance, apparent financial means or the nature of their needs.

They should avoid using the criteria as a way of restricting the number of people receiving services to those with the very highest needs. Rather, they should concentrate on adopting a strong preventative approach to help avoid rising levels of need and costs at a later stage. Prevention rather than cure.

They should consider whether an individual may benefit from a short period of re-ablement or immediate care to increase what they are able to do for themselves before an assessment of long term need is undertaken.

They may provide immediate care and support in emergencies and crises. At this stage they should advise the individuals that a more detailed assessment will follow which may alter the level of care and/or support provided.

From the outset, as much information as possible must be conveyed to the individual.

The community care assessment

An appropriate community care assessment must be carried out assessing the short-term and long-term needs prior to a decision being made regarding their eligibility for support.

Councils have a duty under the Community Care Assessment Directions 2004 to consult with the person being assessed (and their carers where appropriate) and to take all reasonable steps to reach agreement with the person about the kind of support to be provided.

The assessment should be interactive and ongoing rather than a one off event. The depth and breadth should be appropriate to the individual circumstances. Agencies should work together to ensure that information from assessment and related activities is shared among professionals in order to avoid duplication of assessment.

After the community care assessment: support to eligible persons

The NHS and Community Care Act 1990 requires that having conducted the assessment, councils must decide whether the person's needs call for the provision by it of any community services.

Once the council has decided it is necessary to meet the eligible needs, it is under a duty to provide sufficient support to meet those needs.

Such support should be provided promptly once the council has agreed to do so but where waiting is unavoidable it should ensure that alternative support is available in the short term to meet the identifiable needs.

An assessment of the means of an individual and their ability to pay or contribute to the costs should only take place after the assessment. This is so that it doesn’t affect the level and detail of the assessment.

That assessment of the ability to pay should also be made promptly and information about the charges and their calculation should be provided.

Once eligible needs have been identified, a support plan can then be put together with the collaboration of the individual describing what support they will draw on to overcome barriers to independence.

All discussions around choices must be accurately recorded in writing to ensure the council, the individual and carers are clear about any potential consequences and how the risk can be managed.

A written record of the support plan should be agreed with the individual:

• A note of the eligible needs identified
• Agreed outcomes and how support will be organised
• A risk assessment including any action to manage those identified
• Contingency plans
• And financial contribution
• Support carers and others are willing and able to provide
• Support to be provided
• A review date.

There must be regular reviews of the support plan. Written records of those reviews should be kept. The frequency is proportionate to the circumstances of the individual.

There should be an initial review after three months. Further reviews should occur at least annually.

The plans should focus on what people are able to achieve with the right help, rather than simply putting things in place to preserve the status quo and prevent things getting worse.

When an individual moves to another council area, the new council should take into account the decisions of the former and the effect on the individual on changing any element.

Assisting individuals not eligible for social care support

If an individual’s needs do not meet the eligibility criteria for support, the council should be satisfied that the person’s needs are not going to significantly worsen or increase in the future due to a lack of support and thereby compromise independence and well-being.

Where they do not offer direct help following assessment they should put reasons in writing to the individual and make written records available. They should be told they should return for re-assessment if their circumstances change.

Assessment of carers

A carer who provides or intends to provide substantial care on a regular basis has a right to have their needs assessed by the local authority independent of the needs of the person they provide care to under the Carers (Recognition and Services) Act 1995.

There are two purposes of this assessment:

• To consider the sustainability of the caring role, and
• Whether or not the carer works or wishes to work and whether they are undertaking or wish to undertake education, training, leisure activity and the impact of their caring role on their commitments and aspirations. “It is essential that councils take account of the cumulative effects of responsibilities on family members within the household”.

The council after assessment must then assess whether the carer requires services.

Parents of disabled children can request an assessment if the local authority is satisfied the disabled child and their family are persons for whom it may provide or arrange the provision of services under section 17 Children Act 1989 or the Carers and Disabled Children Act 2000

Where it is identified that the well being of a carer is at risk, that person should be offered an assessment.

Young people with social care needs

Councils should have in place arrangements to ensure that young people with social care needs have every opportunity to lead as independent a life as possible and that they are not disadvantaged by moving from children’s to adult services.

The move to adult health and social care with different entitlement criteria has very often seen the withdrawal of specialist services often essential to the young person’s quality of life.

Transition planning requires a coordinated multi agency approach. In particular directors of adult social services should work in partnership with directors of children social services to carry out joint appraisals of local arrangements, commissioning strategies and the outcomes for young disabled people and their families.

Successful transition depends on early and effective planning, putting the person at the centre of the process.

Duties under other statutes and guidelines

• The council must ensure that the core principles of the Mental Capacity Act 2005 are followed carefully during assessment, support planning and should refer to the Mental Capacity Code of Practice [2007] in so doing
• The council should consider whether Independent Mental Capacity Advocates and other advocates such as dementia advocates or learning disability advocates may be appropriate to ensure the people involved play a role in the decision making process as far as possible.
• The Race Relations Act 1976
• Disability Discrimination Act
• Sex Discrimination Act
• Councils should ensure that relevant staff from the local authority and partner agencies are aware of the Practice Guide to Carers (Equal Opportunities) Act 2004 published by the Social Care Institute for Excellence
• The Human Rights Act 1998.

Olivia Chaffin-Laird is a barrister at No5 Chambers (www.no5.com). She can be contacted on  0845 210 5555 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..